ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Crim. No. 75-110)
Aldisert and Gibbons, Circuit Judges, and McGlynn,*fn* District Judge.
Melvin A. Slawik appeals from a judgment of sentence imposed pursuant to a jury verdict finding him guilty on three counts of making false declarations before a grand jury in violation of 18 U.S.C. § 1623.*fn1 We reverse.
Slawik, at the time of trial, was the elected County Executive of New Castle County, Delaware. His indictment grew out of a federal investigation of the relationship between contractors and various New Castle County public officials.*fn2 In the course of that investigation the United States Attorney became aware that one Bayard Austin, a former political associate of Slawik, might have relevant information.
Austin, then living in Orlando, Florida, was interviewed there by F.B.I. Agents on August 4, 1974. Austin asserted the fifth amendment privilege against self-incrimination. On August 8, 1974, the agents advised Austin they were authorized to grant him immunity from prosecution. With this assurance, he gave the agents a statement about various matters in New Castle County. They discussed installing a recording device on Austin's telephone and Austin's using a concealed recording device on his person, in order to record conversation between Austin and his former New Castle County associates.
On October 9, 1974, a recording device was placed on Austin's telephone. Austin then called Slawik who eventually returned his call. Other telephone conversations followed. On October 14, 1974, Austin, Slawik, and three other New Castle County associates met in Florida. Austin's concealed recording device was running. Throughout the telephone conversations and the meeting, Austin maintained the pretense that he was not yet cooperating with the F.B.I. He did not disclose that he had been granted immunity. On October 23, 1974 one additional call between Austin and Slawik was recorded. The United States Attorney's office promptly obtained all of the recordings described above.
Slawick was subpoenaed to testify before a federal grand jury in Wilmington, Delaware on December 11, 1974. The Assistant United States Attorney who conducted the examination had already studied the tapes. However, he disclosed to Slawik neither their existence nor the fact of Austin's cooperation.*fn3 The December 11 examination of Slawik covers more than 200 pages of transcript. The charges of making false declarations presently before us arise from that testimony. The principal evidence the government relied on to prove its case is the recordings.
Each of the three counts set forth in identical terms the subject matter of the grand jury's investigation.*fn4 Each count set forth in identical terms that which the government contended was material to the investigation.*fn5 In the third paragraph of each count, the indictment set forth a specific material matter as to which Slawik allegedly gave false testimony.*fn6
The indictment did not state why or how these three areas of inquiry were matters material to the grand jury's investigation. In a motion for a bill of particulars, Slawik sought to learn, with respect to paragraph three of each count, the material matter which the government did not believe to be true, the reason it was material, and the particularized facts on which the government relied in support of the allegations that the specified testimony was false. The district court sustained the government's refusal to answer those questions. The government did answer, however, a question with respect to the factual basis of the materiality allegations in paragraph 2 of each count:*fn7
"The factual basis for the materiality allegations is based upon the fact that the testimony was capable of influencing the tribunal in its investigation and had the natural effect or tendency to influence, impede, hamper, or dissuade the Grand Jury from pursuing its investigation." United States Response to Defendant Melvin A. Slawik's Motion for a Bill of Particulars, Counts 7, 8, and 9.
Materiality is an essential element of a violation of 18 U.S.C. § 1623 and a question of law, decision upon which is reserved to the court.*fn8 Slawik's statements are set forth in the margin.*fn9
To appreciate answer number five,*fn10 it must be read in context. The examiner's prior questions elicited the answers, not claimed to be false, that Slawik went to Florida to talk to Austin about getting an attorney, and about coming to Wilmington to testify before the grand jury. Answer number five is in response to a paraphrase by the government attorney of this prior testimony:
Q: So you went there and said you got a subpoena. You got to testify.
Answer number six,*fn11 too, was in response to the government attorney's paraphrase of the prior answer.
It is the government's position that the answers to questions five and six, both referring to a conversation in Florida on October 14, 1974, were understood by the ...